1. Where constitutional grounds are raised for the first time on appeal, they are not properly
before this court for review.

2. As a general rule, courts will not decide a constitutional question if there is some other
ground upon which to decide or dispose of the case.

3. When the facts material to a decision of the court on a motion to suppress evidence are
not in dispute, the question of whether to suppress is a question of law subject to
unlimited review.

4. Under the provisions of K.S.A. 41-2613, the acceptance of a club license is deemed to be
consent of the licensee to immediate entry by a duly authorized officer for the purpose of
inspecting the premises for violation of the Club and Drinking Establishment Act, K.S.A.
41-2601 et seq. Such consent encompasses a licensee's acquiescence with or
submission
to the immediate entry by officers. Where the licensee refuses to allow immediate entry,
the exclusive remedy is revocation of the club license.

Randall L. Hodgkinson, deputy appellate defender, argued the cause and was
on the briefs
for appellant.

Ty Kaufman, county attorney, argued the cause, and Carla J.
Stovall, attorney general,
was with him on the brief for appellee.

The opinion of the court was delivered by

ALLEGRUCCI, J.: Mark W. Childs was convicted by a jury of one count of possession
of methamphetamine and one count of misdemeanor possession of drug paraphernalia. The
contraband was seized during an after-hours warrantless search of a licensed club that was
conducted pursuant to K.S.A. 41-2613, a provision of the Club and Drinking Establishment Act,
K.S.A. 41-2601 et seq. On appeal, Childs challenges the constitutionality of the
statute, which
makes the right of immediate entry and inspection a condition of licensure for premises where
alcoholic liquor is sold. In the alternative, Childs contends that the officers gained entry by
coercion, which invalidates the search. Childs also complains of the trial court's jury
instructions. The case was transferred by the court from the Court of Appeals. See K.S.A.
20-3018(c).

On October 16, 2000, at approximately 2:30 a.m., four law enforcement officers sought
entrance to a licensed private club called Snappers in McPherson, Kansas. The club was licensed
to Myron Barrow, who owned the building and the equipment; Childs managed the club and
owned the inventory.

Michael Eells, an enforcement agent for the Kansas Alcohol Beverage Control Division,
and Officer Brian Weinbrenner of the McPherson police department went to the back door. Two
other police officers went to the front door. The officers knocked and announced that they were
police officers. After 45 seconds, Agent Eells shone his flashlight through the small window in
the back door. After approximately another minute and a half, Childs came to the back door and
opened it. Childs blocked the entrance with his body.

Officer Weinbrenner was uniformed, and Agent Eells was wearing a jacket with "Police"
written across the front and back. Eells told Childs he was conducting a bar check and told
Childs to move out of the way or he would arrest him for obstruction.

Childs moved aside so that Eells and Weinbrenner could enter the back door. Eells told
Childs to open the front door for the other officers, and he did so.

Inside the bar, the officers found evidence of after-hours drinking and other violations of
the Club and Drinking Establishment Act. Of the approximately dozen people in the bar, only
one or two were members. The officers found cold, open bottles of beer and cold, foamy glasses
a half hour after consumption was to have stopped.

One of the patrons testified that while she was in Snappers, Childs twice went in and out
of a storeroom located at the end of the bar. When the officers came to the doors, Childs first
tried to clear beer off of tables and then locked the storeroom door before going to the back door.

Eells told Childs to unlock the storeroom door, and Childs did so using a key that was in
his pocket. On a file cabinet in the storeroom, Eells saw a small plastic bag of powder and a
rolled $5 bill on an identification card. The identification card was lying face down. When
Childs was three to four feet away from it and before it was turned over, Childs stated that the
card was his. There was a powdery residue on the file cabinet, on the identification card, and on
the rolled $5 bill. Testing showed that the small plastic bag contained methamphetamine.

The identification card is a hard plastic card printed on the face with the logo TVC
Pro-Driver, Inc., a number, and the name of Mark W. Childs. Small print on the reverse of the
card
indicates that it is identification for a discount pharmacy network.

In the trial court, Childs challenged the legality of the search in a motion to suppress.
After hearing evidence on the motion to suppress, the district judge denied the motion. A jury
found Childs guilty of possession of methamphetamine and possession of drug paraphernalia.
The trial court imposed an underlying 20-month prison sentence with a consecutive 12-month jail
sentence and granted probation for 18 months.

On appeal, Childs challenges the constitutionality of K.S.A. 41-2613, legality of the
search because the entry was coerced, and several instructions concerning the possession of
methamphetamine.

K.S.A. 41-2613 provides:

"The right of immediate entry to and inspection of any premises licensed as a club
or drinking
establishment or any premises where alcoholic liquor is sold by a holder of a temporary permit,
or any
premises subject to the control of any licensee or temporary permit holder, by any duly
authorized officer
or agent of the director, or by any law enforcement officer, shall be a condition on which every
license or
temporary permit is issued, and the application for, and acceptance of, any license or temporary
permit
shall conclusively be deemed to be the consent of the applicant and licensee or permit holder to
such
immediate entry and inspection. Such right of immediate entry and inspection shall be at any
time when
the premises are occupied and is not limited to hours when the club or drinking establishment is
open for
business. Such consent shall not be revocable during the term of the license or temporary permit.
Refusal
of such entry shall be grounds for revocation of the license or temporary permit."

In neither his written motion to suppress nor his oral argument on the motion did Childs
challenge the constitutionality of K.S.A. 41-2613. The State has not objected to Childs' raising
the issue for the first time on appeal.

In the written motion to suppress the controlled substances seized during the search of the
club, Childs alleged that the search was warrantless and unreasonable but did not elaborate. At
the hearing on the motion to suppress, he argued that K.S.A. 41-2613 did not authorize the
officers' entry in this case because it does not allow officers to enter a club with neither consent
nor a warrant. When Childs refused consent by blocking the officers' entry, according to the
argument, the officers' recourse was to seek revocation of the club license. Instead, Childs
argued, the officers gained entry by threatening to arrest him, which amounted to coercion in
violation of the Fourth Amendment to the United States Constitution.

Childs' argument was rejected by the trial judge:

"It should go without saying that the premises serving alcoholic beverages are
among the most
heavily regulated by State government in Kansas. It appears to this Court that Agent Eels and
others were
conducting a valid regulatory search and as such Mr. Childs was not entitled to the same
protections as if
his personal behaviors were under scrutiny by the officers. Because of this, I believe the remedy
for
noncompliance is not purely an administrative one, and I find that the officers were entitled to
entry into
the premises under the circumstances of this case."

The district court also stated that the question whether the scope of the search, which was to
check for after-hours drinking, was broad enough to include seizure of the methamphetamine and
drug paraphernalia found on the filing cabinet was decided by State v. Dailey, 209
Kan. 707, 498
P.2d 614 (1972). In Dailey, officers searching a club pursuant to K.S.A. 41-2613
(Weeks) found
and seized gambling devices. This court held that the gambling devices were admissible. 209
Kan. at 722.

On appeal, Childs cites New York v. Burger, 482 U.S. 691, 96 L. Ed. 2d 601,
107 S. Ct.
2636 (1987), in challenging the constitutionality of K.S.A. 41-2613 as not sufficiently limiting
searches in time, place, and scope. Where constitutional grounds are asserted for the first time on
appeal, they are not properly before this court for review. State v. Mason, 268 Kan.
37, 39, 986
P.2d 387 (1999).

This court has recognized exceptions that would permit this court to consider Childs'
constitutional challenge to K.S.A. 41-2613. In State v. Mincey, 265 Kan. 257, 267,
963 P.2d 403
(1998), the court identified exceptions to the general rule in cases where:

"(1) the newly asserted theory involves only a question of law arising on proved or
admitted facts and
which is finally determinative of the case; (2) questions are raised for the first time on appeal if
consideration of the same is necessary to serve the ends of justice or to prevent denial of
fundamental
rights; and (3) the judgment of a trial court may be upheld on appeal although that court may
have relied
on the wrong ground or assigned a wrong reason for its decision."

In this case, the newly asserted theory involves only a question of law arising on proven facts
and
it would be finally determinative of the case. However, it is a familiar rule that courts will not
decide a constitutional question if there is some other ground upon which to decide or dispose of
the case. In McVay v. Rich, 255 Kan. 371, 874 P.2d 641, (1994), as here, the
constitutional
challenge was not raised before the district court. In declining to consider the constitutional issue
we said:

"Only in cases where it is virtually impossible to decide the issue on the merits
without
considering the constitutionality will this court entertain the question of constitutionality. For
example, in
the case of Van Sickle v. Shanahan, 212 Kan. 426, Syl. ¶ 3, 511 P.2d 223
(1973), we noted:

'The constitutionality of a statute or an amendment to the Constitution should be
considered in an
action where it is necessary in order to determine the merits of the action or where the issues
cannot be intelligently decided without doing so, notwithstanding the failure of the parties to
raise
the constitutional question, failure to plead the question, or failure to present the question to the
district court.'

We should address constitutional questions raised for the first time in this court only
when '[w]e cannot
intelligently dispose of this litigation without considering and discussing' those constitutional
questions.
State v. Nelson, 210 Kan. 439, 443, 502 P.2d 841 (1972)." 255 Kan. at 379-80.

Thus, we first consider whether the search was illegal. If we determine that it
was illegal,
then we do not reach Childs' constitutional challenge to K.S.A. 41-2613. The argument made by
Childs in his motion to suppress was that the officers had no right to arrest him for refusing to
allow them to enter the club and that their only recourse was to seek revocation of the club
license; thus, their threatening to arrest him if he refused them entry constituted coercion in
violation of the Fourth Amendment. On appeal, he makes this argument in the alternative to his
challenge to the statute. As already noted, the district court rejected Childs' argument that the
only remedy available to the officers for noncompliance with the immediate entry and inspection
provision of K.S.A. 41-2613 is an administrative one. Since the facts material to the motion to
suppress evidence are not in dispute, the question of whether to suppress becomes a question of
law. See State v. Rexroat, 266 Kan. 50, 53, 966 P.2d 666 (1998).

Citing K.S.A. 41-2633, the State contends that Childs could have been imprisoned for
refusing entry to the officers. The statute provides: "Violation of any provision of the club and
drinking establishment act . . . for which a penalty is not otherwise specifically provided is
punishable by a fine not to exceed $500 or imprisonment not to exceed six months, or both."
Childs argues that the provision for revocation of the club license in K.S.A. 41-2613 is a penalty
"otherwise specifically provided" so that K.S.A. 41-2633 is not implicated. Because K.S.A.
41-2613 expressly provides that "[r]efusal of such entry shall be grounds for revocation of the
license or temporary permit," it appears that Childs' view of the statutory scheme is correct.

Childs relies on Dailey and State v. Adee, 241 Kan. 825, 740
P.2d 611 (1987), for the
premise that the officers had no right to arrest him for refusing entry. Neither case involves a
refused entry.

In Dailey, a group of officers led by a special agent of the Kansas Bureau of
Investigation
rang for entry at the locked door of an American Legion Club. When the door was opened, the
special agent gave his name, said he was with the KBI, and then stated, "This is a raid." 209
Kan. at 709. Without waiting for a response, he and the other officers rushed into the club. It
was disputed whether the doorman was pushed aside. The trial court found that the entry was
coercive, 209 Kan. at 711, but this court reversed, stating:

"Weigel was not forced or manhandled out of the doorway, nor did he say anything that
could be construed
as negating consent to entrance by the officers. We believe the entry here can best be described
as an
acquiescence with or submission to lawful authority which we believe falls within the realm of
the consent
to immediate entry as a condition of licensing, as contemplated by the legislature. Mr. Weigel
could have
elected to slam the door or block the doorway with his person at the risk of license revocation.
The hard
choice left to him may well be considered 'coercive' but this is a risk undertaken by the
acceptance of a
license to operate as a private club. Consent to enter, by the terms of 41-2613, is to be measured
against a
refusal. Consent to enter was given by the statute, affirmative consent by Weigel was
unnecessary, as will
be shown later. There is no evidence of anything said or done by Weigel that could be construed
as a
refusal necessitating an entry by force on the part of the officers. The door was not forced, it was
voluntarily opened by Weigel. He did not attempt to block the doorway or resist entrance by the
officers."
209 Kan. at 717-18.

The court then stated:

"In the case at bar, the officers were merely asserting their statutory right, both
Weigel and
defendant were on notice as to the officers' identity and the legal basis for their action. As in
Biswell, the
consent given by the licensee in accepting a license under the act established lawful authority
independent
of the will of the licensee. Thus, affirmative consent is not required; acquiescence or cooperative
submission, as in this case, is sufficient. This is not to say that officers can use any appreciable
force to
gain entry when confronted with a refusal, which is an option of the licensee. The act affords the
remedy
of license revocation in such a circumstance."

. . . .

"For the reasons stated we hold that the submission of Weigel and the willing
cooperation of
defendant constituted consent within the contemplation of 41-2613, supra; that the
search was not forcible
and that the seizure of the subject slot machines was reasonable and lawful." 209 Kan. at 721-22.

Although an actual refusal of entry was not before the court in Dailey, the court
noted that refusal
was an option, and its statements in this regard tend to support Childs' position that entry can be
refused upon penalty of license revocation.

The State contends that Childs was subject to arrest under K.S.A. 21-3808(a) for
knowingly and intentionally obstructing, resisting, or opposing any person authorized by law in
the discharge of any official duty. An option to refuse entry, as recognized by the court in
Dailey, however, hardly seems consistent with being subject to prosecution for
obstructing
official duty.

Adee is a case of statutory interpretation involving reconciliation of the
language in two
parts of K.S.A. 1986 Supp. 8-1001. Due to the narrowness of the question in Adee,
the decision
does not lend itself to broad application and provides little guidance for the present case. The
question to be resolved through statutory interpretation in Adee was whether under
the Kansas
implied consent law the refusal of a person arrested for DUI to submit to alcohol concentration
testing could be overridden by an officer's obtaining a search warrant for a blood sample. The
Kansas implied consent law is premised "on the theory that anyone who operates a motor vehicle
upon public highways consents in advance to submission to a chemical test in order to determine
the amount of alcohol in the driver's blood." 241 Kan. at 829. K.S.A. 1986 Supp. 8-1001(f)(1)
prohibited "additional testing" if a person refused and made refusal grounds for license
suspension. K.S.A. 1986 Supp. 8-1001 (g) provided that "[n]othing in this section shall be
construed to limit the admissibility at any trial of alcohol or drug concentration testing results
obtained pursuant to a search warrant." The court concluded that subsection (g) did not permit
the issuance of a search warrant for a blood sample from a person refusing testing pursuant to
subsection (f). 241 Kan. at 833.

The State cites United States v. Biswell, 406 U.S. 311, 32 L. Ed. 2d 87, 92 S.
Ct. 1593
(1972), seemingly for the proposition that Childs' permitting the entry was voluntary.
Biswell,
however, cannot be extended far enough to support the proposition. In Biswell, the
Court
reversed the opinion of the Tenth Circuit Court of Appeals holding that 18 U.S.C. §
923(g),
which authorized warrantless searches of federally licensed gun dealers, violated the Fourth
Amendment and that Biswell's consent was invalid. Biswell, a pawnshop operator federally
licensed to deal in sporting weapons, permitted an agent to inspect his books but asked for a
warrant when the agent sought entry into a locked storeroom. After being presented with and
reading a copy of the authorizing statute, Biswell unlocked the storeroom where there were
sawed-off rifles he was not licensed to possess. The Supreme Court concluded that the statute
was constitutional. Hence, the claim that Biswell's consent to inspect the locked storeroom was
invalid was laid to rest. In the present case, the defendant's contention that his consent was
coerced is based not on the unconstitutionality of the statute but on the officer's threat to arrest
him when arrest was not a possibility.

At the heart of this analysis is the question whether Childs' refusal to permit the officers
to enter the club would have subjected him to arrest under K.S.A. 21-3808(a). On this key
element, the State asserts that Childs would be subject to arrest but fails to cite any authority that
would allow an arrest for obstructing official duty in the context of an administrative search.

Relying on Dailey, the State also argues that the point is moot because Childs
did not
refuse entry to the officers. There is no comparison between the cases. In Dailey,
the person
who opened the door offered no resistance when the officers rushed in. In the present case,
Childs blocked the door with his body so that the officers were unable to enter until Childs
moved aside in response to Agent Eells' threat to arrest him for refusing entry. In the
circumstances of Dailey, there was no issue of refusing entry. In the present case,
the key issue
centers on Childs' yielding entry to the officers after initially refusing it.

K.S.A. 41-2613 identifies license revocation as the consequence for refusing to permit
officers to enter and inspect. Similarly, the statute at issue in Colonnade Corp. v. United
States,
397 U.S. 72, 74, 25 L. Ed. 2d 60, 90 S. Ct. 774 (1970), which applied to retail dealers in liquors,
identified a $500 fine as the consequence for refusing to permit Treasury Department agents to
enter and examine taxable articles. The question before the Supreme Court was "whether the
imposition of a fine for refusal to permit entry­with the attendant consequences that
violation of
inspection laws may have in this closely regulated industry­is under this statutory scheme
the
exclusive sanction, absent a warrant to break and enter." 397 U.S. at 74. The Supreme Court
concluded that imposition of the fine was the exclusive sanction. The court stated:

"We deal here with the liquor industry long subject to close supervision and inspection.
As respects that
industry, and its various branches including retailers, Congress has broad authority to fashion
standards of
reasonableness for searches and seizures. Under the existing statutes, Congress selected a
standard that
does not include forcible entries without a warrant. It resolved the issue, not by authorizing
forcible,
warrantless entries, but by making it an offense for a licensee to refuse admission to the
inspector." 397
U.S. at 77.

In formulating the statute at issue in the present case, the legislature resolved the issue of
refusal by making refusal of entry grounds for revocation of the license for a club or drinking
establishment. K.S.A. 41-2613. By so doing the legislature acknowledged the licensee's right to
refuse to submit to entry and inspection by the law enforcement officers. However, such refusal
triggers State action for license revocation. In Dailey, this court believed the
legislature
contemplated consent to immediate entry to encompass acquiescence with or submission to the
entry by the licensees. We further stated that "[c]onsent to enter, by the terms of 41-2613, is to
be measured against a refusal." 209 Kan. at 718. We also noted that confronted with a refusal,
the officers cannot use force to gain entry.

We, therefore, conclude that Childs' action constituted a refusal as contemplated by
K.S.A. 41-2613. We interpret K.S.A. 41-2613 to provide the sanction of license revocation as
the exclusive sanction for refusing entry to duly authorized officers. Agent Eells did not have
authority to arrest Childs for obstruction of official duty and Eell's overcoming Childs' resistance
by threatening to arrest him amounted to gaining entry on false pretenses. Thus, the officers'
entry and inspection was not authorized under K.S.A. 41-2613 and constituted an unlawful entry
and search. Under these circumstances, law enforcement officers may not compel entry by force
except through the warrant process. The district court erred in failing to grant Childs' motion to
suppress. In view of our ruling on this issue, we do not consider the constitutionality of K.S.A.
41-2613 or Childs' challenge to the instructions given by the trial court.

Reversed.

ABBOTT, J., not participating.

DAVID S. KNUDSON, J., assigned.1

1REPORTER'S NOTE: Judge Knudson, of the Kansas Court
of Appeals, was appointed to hear
case No. 88,556 vice Justice Abbott pursuant to the authority vested in the Supreme Court by
K.S.A. 20-3002(c).